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Legal Regime of Space Debris and Legal Proposals to mitigate the negative effects of Space Debris

Earth is surrounded by a cloud of space debris which consists of non-functional satellites and fragments resulting from collisions for example tiny screws and bolts moving at such a high velocity which could do enormous damage to the working satellites. It covers objects which are larger than about five to ten centimetres in the Low Earth Orbit (LEO) and about thirty centimetres to one metre at Geostationary Earth Orbit (GEO)[1].

One of the most severe collision was observed on 10th February 2009 between an American satellite and a Russian satellite which resulted into thousands of untraceable fragments of all sizes wandering with a constant threat of colliding with the operating satellites or interfere with their transmissions[2].  The issue of space debris is a prominent one as rightly pointed out by Matthew J. Kleiman who is a professor at Boston University that If enough debris accumulates, it will become virtually impossible to operate spacecraft in Earth orbit[3].

Most of the space debris comprises of both the man-made and non-functional particles including rocket parts and inactive satellites. There are approximately more than 20,000 pieces of debris larger than the size of a tennis ball moving at a speed of 17,500 mph which is relatively fifteen times the speed of a bullet fired. Therefore, such a small piece of orbital debris has the potential to destroy the spacecraft or satellite[4].

One of the most popular theories as proposed by the NASA scientist Donald J. Kessler in 1978 was the Kessler syndrome. The Kessler syndrome or the Kessler effect is the event in which a large density of Low Earth Orbit (LEO) object causes a cascading effect where each collision generates spaces debris that consequently increases the likelihood of further collisions and debris. A harmful consequence could be that excess debris in space could render space activities and the use of satellites impractical for many decades.

Each satellite, space probe and manned mission has the capacity to generate space debris. The Kessler syndrome becomes more and more likely as and when satellites in orbit increase in number. The most common manned and unmanned space vehicles are LEO[5].

Legal Status Of Space Debris:
Although, there are various important legal framework with respect to outer space activities such as Liability Convention 1972, Moon Agreement 1979, Outer Space Treaty 1967, Rescue Agreement 1968, and Registration Convention 1975. However, the most pertinent of them all is the Outer Space Treaty (OST) 1967, sometimes referred to as the Constitution of space law as it entails the basic principles of space activities[6].

There are three articles that are pertinent to address the debris related issues i.e. Article VI of OST, which declares that:
States Parties to the Treaty shall bear international responsibility for national activities in outer space[7].

Article VII of OST, which declares that:
State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty[8] and Article IX of OST, which prescribes that the launching state should take 'appropriate measures' in case it believes that their space exploration will lead to 'harmful contamination' of outer space[9].

However, there are no specific requirements that illustrate how a standard of care will be ensured towards activities of other states. Thus, while the current legal regime provides a guiding direction for co-operation between various participants of outer space – there is still a lack of concrete instruments that will help ensure sustainability in the current framework. The current legal framework does not impose any prohibition on the creation of space debris and nor does it obligate on states and their space actors to remove debris created in the orbit. Majority of the mitigation measures are either voluntary or non-binding that have only been partly adopted by some states in their domestic framework on space law[10].

Measures That Could Be Accepted:
In 2010, the United Nations Committee on the Peaceful Uses of Outer Space (UN COPUOS) was established where the working group primarily focused on limiting the generation of space debris in the environment. The UN COPUOS guidelines are voluntary and non-binding fundamental principles which means that it has no legal obligation for the States and their nationals to comply[11].

These guidelines are applicable only to mission planning and operational activities of newly designed spacecraft and orbital stages. Although, these guidelines do not provide a cure for the space debris issue or stabilize the space debris environment. However, it provides a framework as to how the space activities should be conducted and seeks to limit the debris which is discharged due to such operations. The guidelines enumerated under UN COPUOS are similar to the Inter-Agency Space Debris Coordination Committee (IADC) guidelines as they are all technical in nature however, the UN COPUOS guidelines are designed in such a manner so as to provide more general direction as compared to the IADC version[12].

In order to overcome the challenges posed by the space debris there needs to be an effective network of space traffic management as the next five to twelve years would be crucial to the long-term sustainability of private commercial spacecraft operations. Although, it is a voluntary measure but the interests of all the States and their citizens should be taken into consideration and the national governments could impose domestic penalties for the effective implementation of the guidelines so as to attain a binding status at the international level. Countries need a strong political will to turn these non-binding principles into legally binding agreements so as to balance the interests of the current as well as the future generations[13].

Another measure that could be proposed is the introduction of a global convention such as World Space Debris Congress convened by the United Nations Office for Outer Space Affairs (UNOOSA) that would include the state members at the UN General assembly. For the convention to be successful there should be consensus among the nations on the space debris convention.

It would be of utmost importance that the views of space agencies backed by NASA and ESA, astronautical societies, groups, association, and experts be taken into consideration while formulating the convention. A consensus building program should be initiated at the earliest so as to include the interests of all the stakeholders and other actors such as the space industry and scientific community to resolve the complexities posed by space debris in ways that are acceptable to all[14].

One of the prominent problems while dealing with space debris is that it is not detectable. Therefore, one of the primary goals set out in the convention is to detect the debris at the initial stage and define it because an objective assessment of the problem is necessary before taking any further steps. In addition to this, before proceeding with any one course of action it would be viable to have alternative solutions because it would be difficult to satisfy all the related parties to the convention with one option. It is necessary that everyone is on board in terms of trade-offs before the final draft for the convention is formulated[15].

Whereas also the failure of any member nation to adopt the standards laid down in the convention would be construed as an obstacle in the way of other member nations who are constantly trying to improve the conditions in the outer space in terms of exploration and use. Hence, if we are to act globally, we need a global platform. Therefore, if one country is not doing their bit, they will be forcing other countries to lower their standards with respect to mitigation of space debris and as a result, there will be a race to the bottom.

Another measure that can be looked at is the Space Debris Remediation which aims at removing the existing pieces of orbital debris through a method called active debris removal (ADR). It involves removing of such objects which are not functional anymore such as rocket bodies and defunct satellites.

This could be achieved with the support of on-orbit servicing of satellites (OSS). It aims at improving those satellites which are no longer functional through upgrading and refueling to diminish the risk of space debris. However, these measures are proposed but are not enforced yet as they are still under investigation by the Defence Advanced Research Projects Agency (DARPA)[16].

It could be observed that there are certain legal problems that would affect the practical implementation of the space debris remediation program. There is no concrete definition of the term space debris therefore, the answers to questions of the illegality of its release could not be answered. In addition to this, the treaties which laid down the standards for the protection of the space environment from space debris are not binding law.

One of the major problems faced in removing the objects causing space debris is to obtain the prior consent of the respective state because according to Article VIII of Outer Space treaty A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object[17]. Therefore, only the objects which are registered would be subjected to space debris remediation.

The states withhold the power to legally enforce over their 'space objects' and the object even though it's harmful and possesses grave and imminent danger to the working satellites could not me removed without the consent of the respective state otherwise the act would be deemed unlawful and in  contravention to the Outer Space Treaty.

Conclusion:
A formalization of the agreements is needed to turn them into binding obligations which are enforceable with international consensus. Financing and international cooperation are some of the major barriers in the way of implementation? Who funds these missions? Deciding what is 'space debris' and what is not? These questions need to be solved in any potential framework. A long-term challenge is to create a legal framework that makes us re-think and change our strategies in space. We need to be vigilant with future space missions and operational facilities[18].
 
Mere technical solutions are not the answer to this conundrum. National governments of major space-funding nations must come to a consensus; politics will play a role in deciding strategies for the future. Hence, it is a wake-up call to all the space agencies and experts to join hands and review all the possible roadblocks to resolve the inevitable problem of space debris before such measures could be adopted. National governments can set an example and kick-start some affirmative action the next time we have a major issue or damage in outer space. This may help in initializing and enforcing national measures with strict sanctions for non-compliance[19].

End-Notes:

  1. Durrieu, Sylvie; Nelson, Ross F, Earth observation from space – The issue of environmental sustainability (November 2013) https://www.sciencedirect.com/science/article/pii/S0265964613000659 accessed on 10th May 2020
  2. Matignon, Louis de Gouyon, THE LEGAL STATUS OF SPACE DEBRIS (June 23, 2019) https://www.spacelegalissues.com/the-legal-status-of-space-debris/ accessed on 10th May 2020
  3. Avgerinopoulou, Dionysia-Theodora; Stolis, Katerina, Current Trends and Challenges in International Space Law   https://www.essc.esf.org/fileadmin/user_upload/essc/Article_Current_Trends_and_Challenges_in_Space_Law.pdf accessed on 10th May 2020
  4. Garcia, Mark, Space Debris and Human Spacecraft (September 27, 2013) https://www.nasa.gov/mission_pages/station/news/orbital_debris.html accessed on 10th May 2020
  5. Matignon, Louis de Gouyon, THE LEGAL STATUS OF SPACE DEBRIS (June 23, 2019) https://www.spacelegalissues.com/the-legal-status-of-space-debris/ accessed on 11th May 2020
  6. Popova, Rada; Schaus, Volker, The Legal Framework for Space Debris Remediation
    as a Tool for Sustainability in Outer Space (9 May 2018) https://www.mdpi.com/2226-4310/5/2/55/pdf-vor accessed on 11th May 2020
  7. UNITED NATIONS TREATIES AND PRINCIPLES ON OUTER SPACE https://www.unoosa.org/pdf/publications/STSPACE11E.pdf accessed on 11th May 2020
  8. Ibid
  9. Ibid
  10. Popova, Rada; Schaus, Volker, The Legal Framework for Space Debris Remediation as a Tool for Sustainability in Outer Space (9 May 2018) https://www.mdpi.com/2226-4310/5/2/55/pdf-vor accessed on 13th May 2020
  11. Jakhu, Ram, Towards Long-term Sustainability of Space Activities: Overcoming the Challenges of Space Debris (3 February 2011) https://www.unoosa.org/pdf/limited/AC105_C1_2011_CRP14E.pdf accessed on 13th May 2020
  12. Ibid
  13. Ibid
  14. Senechal, Thierry, Orbital Debris: Drafting, Negotiating, Implementing a Convention (May 11 2007) http://web.mit.edu/stgs/pdfs/Orbital%20Debris%20Convention%20Thierry%20Senechal%2011%20May%202007.pdf accessed on 14th May 2020
  15. ibid
  16. Popova, Rada; Schaus, Volker, The Legal Framework for Space Debris Remediation
    as a Tool for Sustainability in Outer Space (9 May 2018) https://www.mdpi.com/2226-4310/5/2/55/pdf-vor accessed on 15th May 2020
  17. UNITED NATIONS TREATIES AND PRINCIPLES ON OUTER SPACE https://www.unoosa.org/pdf/publications/STSPACE11E.pdf accessed on 15th May 2020
  18. Khlystov, Nikolai, We have a space debris problem. Here's how to solve it (3 April 2018)  https://www.weforum.org/agenda/2018/04/we-have-a-space-debris-problem-heres-how-to-solve-it accessed on 16th May 2020
  19. Popova, Rada; Schaus, Volker, The Legal Framework for Space Debris Remediation
    as a Tool for Sustainability in Outer Space (9 May 2018) https://www.mdpi.com/2226-4310/5/2/55/pdf-vor accessed on 16th May 2020

Written by: Anirudh Agarwal, Final Year Student, B.A. LL. B, O.P. Jindal Global University

Awarded certificate of Excellence
Authentication No: AG30905257156-25-820

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